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Anglo Mohammedan Law: Colonial Transformations To Sharia In India

1664 words - 7 pages

The history of the British colonization of India, from a commercial trade relationship to a relationship of control, is deeply tied to the manipulation of Islamic law as was previously practiced by the Mughal Empire. With the development of a 19th century sovereign nation state in India, the British found themselves increasingly in need of developing strategies of centralization and control. They responded to this need by borrowing preexisting concepts from Sharia that they modified in utilitarian ways to redistribute power from the hands of the Moghul rulers to British ones, and developed Orientalist philosophies that justified the colonizing project. In the process, the original application of Sharia was irrevocably changed, and remains to date substantially influenced by British common law. I will discuss these changes and manipulations in the light of the Ijtihad-taqlid controversy, Orientalism, and the dynamic between Sharia and the modern nation state.
The structure of pre-British Sharia during the Mughal reign was characterized by a relationship of relative distance between the state government and legal proceedings in the courtroom. (Giunchi 2010, 1121) Though, quadis (judges) were appointed and dismissed by the emperor, they often based their decisions on non-binding opinions; fatwas, of learned Muftis, who sanctioned a particular course of action in reference to textual evidence from the sources of law. Though fatwas were requested in response to real social situations, the muftis used a hypothetical template to document their decisions, not bearing any details about the identity of the plaintiff and thus allowing for the document to serve as a reference for later occasions. (Hallaq 1994, 32-33) Fatwas did not bear any authority or create precedence unless they were chosen by quadis and adopted in a different, succeeding case. This interaction between quadis and muftis created a flexible and creative framework and allowed growth and transformation within the legal system. In terms of the relationship between state and law, many functions of the legal system took place independently of state oversight, and remained within the sphere of localized custom. Actual systematic application of the Sharia was not a primary concern for Mughal rulers, not even for more orthodox ones such as Aurengzeb (Giunchi 2010, 1121). Communities were, for the most part, allowed to settle their own disputes independently from state interference, and using their own preferred jurisprudence in accordance with their religion, social class and custom. (Guinchi 2010, 1121) Due to the large cultural variances within the Indian population, the Mughal rulers never took it upon themselves to create a uniform, singular system of law that could be applied consistently across cultural barriers. Another important characteristic of pre-British Sharia in India was the duality of procedure. This separated ordinary justice and extraordinary justice, using custom in cases...

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